Hamilton, K. v. Hamilton, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY M. HAMILTON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT E. HAMILTON :
:
Appellant : No. 1219 EDA 2022
Appeal from the Order Entered April 11, 2022
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2018-FC-0679
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED NOVEMBER 10, 2022
Scott E. Hamilton (“Father”) appeals from the order denying his petition
for shared physical custody of the parties’ minor son, D.H. (“Child”), born in
2014. We affirm.
The underlying custody matter commenced in May 2018, following the
marital separation of Father and Kimberly M. Hamilton (“Mother”). In 2018,
the trial court awarded shared legal custody of Child, with primary physical
custody to Mother, and partial physical custody to Father on alternating
weekends and alternating Tuesdays overnight. Since 2018, the parties have
repeatedly filed petitions to modify custody. However, despite numerous
custody orders, Mother has retained primary physical custody of Child
throughout these proceedings.
Father is a pediatric nurse anesthetist at Lehigh Valley Hospital who
works three eight-hour shifts per week from 7:00 a.m. to 3:30 p.m., and two
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twelve-hour shifts per week from 7:00 a.m. to 7:30 p.m. See N.T., 4/8/22,
at 6-7. Mother works weekdays from 7:30 a.m. to 4 p.m. She works in the
office three days per week and works from home two days per week. Id. at
97. After their separation, Father moved to and currently lives in
Coopersburg, Pennsylvania, which is a driving distance of twenty-three
minutes from the school Child attends. Id. at 4-6. Mother lives in the marital
home in Breinigsville, Pennsylvania, which is approximately one mile from the
school Child attends. Id. at 96-97, 103. Since Child’s birth, Mother has been
the primary caregiver. Id. at 111-12.
On March 4, 2020, Father filed a petition for modification of the existing
custody order. On August 27, 2020, a conciliator conducted a conference on
the petition and prepared a proposed order which provided the following
partial custody award:
a. Father shall have alternating weekends with [Child] from
4:00 p.m. on Friday until 7:00 p.m. on Sunday during the
school year. During the summer when school is not in
session, the return of [Child] shall be at 9:00 p.m.
b. During the school year, Father shall have dinner visits with
[Child] on Tuesday and Thursday from after school until
8:00 p.m. Father shall be responsible for providing the
transportation.
c. Since Father has indicated he is unable to exercise his
weekday physical custody during the summer, the schedule
during the summer shall be as follows:
i. Father shall have [Child] each Tuesday from 4:00
p.m. or after daycare or camp, overnight, until
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Wednesday at 9:00 a.m. when [Child] returns to
Mother or daycare/camp. This will be based on when
daycare or camp or Mother’s work begins.
ii. Additionally, Father shall have a Thursday Dinner visit
from 4:00 p.m. until 8:00 p.m. on alternating
Thursday, before his weekends, and on alternating
Thursday (before Mother’s weekends) from 4:00 p.m.
on Thursday, overnight, until 9:00 a.m. on Friday.
d. Father may have additional time as the parties agree.
Proposed Custody Order, 8/27/20, at ¶3. Mother filed exceptions to the
proposed order. On February 8, 2021, the trial court issued an order denying
Mother’s exceptions and adopting the August 27, 2020 proposed custody
order.
On August 11, 2021, Father filed a petition for modification of the
February 8, 2021 custody order, wherein he requested equally shared physical
custody. Specifically, he requested that he and Mother be awarded custody
on an alternating weekly basis or, alternatively, that the current custodial
periods he exercises in the evenings for dinner with Child be changed to
overnights. Mother filed an answer and counterclaim for modification of the
February 8, 2021 custody order. In her counterclaim, Mother sought minor
alterations regarding when vacation time may be used, including that Mother
has Child during his winter recess on even years and Father has Child during
the recess on odd years (excluding holiday times), and that the non-custodial
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parent is limited to one phone call per day, and that phone calls only occur on
the weekend.
The trial court held hearings on April 7 and 8, 2022. Father and Mother
testified during the hearing. Additionally, Father presented two witnesses: Jo
Hamilton, Child’s paternal grandmother; and Maura Dougherty, Father’s
girlfriend with whom he lives. Mother presented four witnesses: David and
Deborah Hinkel, husband and wife who are Mother’s neighbors; and Lance and
Terri Fredericks, Child’s maternal grandparents. Child, who was then seven
years old and in second grade, was not interviewed.
The testimonial and documentary evidence revealed that during the
pendency of the custody proceedings Child has experienced various behavioral
and educational issues. See N.T., 4/8/22, at 25-32; Father’s Exhibits F7-F9.
Child has displayed violent behaviors towards other students, intentionally
urinated in the corner of the classroom, and made suicidal comments at
school. Id. Furthermore, Child’s academic performance has been declining.
Id. In first grade, Child was in the twenty-fifth percentile for reading;
however, Child dropped to the tenth percentile in second grade. Id. at 26-
27. To address these concerns, Child began seeing a play therapist, Kathleen
Hancock. Id. at 107. Recently, Father and Mother have been considering
other potential therapy options for Child. Id. at 28, 111.
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On April 11, 2022, the trial court entered an order denying Father’s
petition for equally shared physical custody. The order granted Mother’s
request for a provision to be added that vacation time with Child is during
Child’s time off from school, that the non-custodial parent may only have one
telephone call per day with Child on weekends and denied her remaining
requests.1 The order awarded Father partial physical custody as follows:
a. During the school year, on alternating weekends from Friday
at 4:00 PM until Sunday at 7:00 PM and on every Tuesday
and Thursday from after school until 8:00 PM. Father shall
provide all transportation for these periods of partial
physical custody.
b. During the summer when school is not in session, on
alternating weekends Friday at 4:00 PM until Sunday at
9:00 PM and on every Tuesday and Thursday from 4:00 PM
or after daycare/camp until 8:00 PM.
Order, 4/11/22, at ¶3.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court filed its Rule 1925(a) opinion directing this Court to its rationale set
forth in its opinion accompanying the April 11, 2022 order.2
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1 Father does not challenge the trial court’s decision to grant in part and, deny
in part, Mother’s petition. Rather, Father’s issues pertain solely to the trial
court’s decision to deny his request for shared physical custody.
2 In its Rule 1925(a) opinion, the trial court mistakenly references the date of
the order as October 24, 2013. As referenced supra, the custody order that
Father appeals from is dated April 11, 2022.
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Father presents the following questions for our review:
1. Whether the lower court committed an error of law and
abuse of discretion awarding Mother primary physical
custody and denying Father shared physical custody
because it failed to appropriately weigh Mother’s conduct in
purposely limiting Father’s custodial time in performing the
parental duties as required by 23 Pa.C.S.A. § 5328(a)(3) in
light of the facts and evidence of record.
2. Whether the lower court committed an error of law and
abuse of discretion awarding Mother primary physical
custody and denying Father shared physical custody
because it focused on Father’s prior conduct but identified
no nexus to [Child’s] present best interest and therefore
failed to appropriately weigh the need for stability and
continuity as required by 23 Pa.C.S.A. § 5328(a)(4) in light
of the facts and evidence of record.
3. Whether the lower court committed an error of law and
abuse of discretion awarding Mother primary physical
custody and denying Father shared physical custody
because it did not properly weigh Mother’s refusal to share
information with Father and therefore failed to appropriately
weigh which parent is more likely to attend to the needs of
[Child] as required by 23 Pa.C.S.A. § 5328(a)(10) in light of
the facts and evidence of record.
Father’s Brief at 8.
We address Father’s claims in accordance with the following scope and
standard of review:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
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deductions or inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the conclusions
of the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial court.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
Further:
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
The test is whether the evidence of record supports the
trial court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (internal citations
omitted).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006) (quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa.
Super. 2004)).
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Child custody actions are governed by the Child Custody Act (“Act”), 23
Pa.C.S.A. §§ 5321-5340. Trial courts are required to consider “[a]ll of the
factors listed in section 5328(a) . . . when entering a custody order.” J.R.M.
v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). This
statutory section provides as follows.
§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
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(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
We have further explained:
Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
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“section 5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen [section 5328 custody] factors prior to
the deadline by which a litigant must file a notice of appeal.” C.B.
v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70
A.3d 808 (Pa. 2013). . . ..
In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all that
is required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
Pa. 710], 68 A.3d 909 ([Pa.] 2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.A.V., 87 A.3d at 822-23.
In his first issue, Father challenges the trial court’s ruling with respect
to section 5328(a)(3), which required the court to consider the parental duties
performed by each party on behalf of Child.
Father argues that Mother purposely limited Father’s custodial time with
Child and attempted to marginalize his role in Child’s life. Father references
Mother’s counterclaim which requested the court to limit Father’s custodial
time with Child, and his telephone calls with Child to once per day on his
noncustodial weekends. Father also argues that Mother obstructs Father’s
attempts to obtain additional time with Child, schedule vacations with Child,
and participate in planning Child’s birthday party. Father states that Mother
argues and degrades Father in Child’s presence, and that Mother is “rigid,
inflexible, and uncooperative. . . ..” Father’s Brief at 18.
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The trial court considered Father’s first issue and explained that section
5328(a)(3) favored Mother because “Mother has been the primary caretaker
of [Child] for years.” Trial Court Opinion, 4/11/22, at 3.
Our review of the record reveals that Mother has been exceedingly
flexible with Father and encourages contact between Father and Child. Mother
testified to various instances where she worked with Father to alter the
custody schedule and ensure that Father spends time with Child. For example,
Mother testified that, in June 2021, Father contacted her because Father’s
schedule did not allow him to accommodate his custodial time periods under
the existing custody order. See N.T., 4/8/22, at 129-30. Mother proposed a
solution where during the summer every Tuesday night would be an overnight
and the Thursdays preceding Mother’s weekend would be an overnight, thus
accommodating Father’s inability to follow the specific provisions of the
custody order, while still maintaining the general integrity of the order. Id.
at 130-32. At the hearing, Father agreed that Mother accommodated him
during this time:
Q: You would agree with me that just prior to June of – or during
June of 2021, which was eight months later after your schedule
became fixed, you reached out to mom and said, “I can’t do the
court order as it is.” Do you recall that?
A: I believe we were going back and forth for court prior to that.
And that’s when the final petition was made, yes.
Q: Okay. You recall that you told mom you couldn’t do the
schedule; right?
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A: Correct.
****
Q: Okay. And did [Mother] agree to change the schedule?
A: Correct.
Q: Okay. So [Mother] accommodated your request for a change?
A: Correct.
Id. at 74-75. Furthermore, Father’s vacation plans with Child were disrupted
in 2020 because Child’s school moved its start date to a week before Labor
Day. Id. at 128-29. Mother testified, “I didn’t want [Father] to lose out on
the time” with Child, so Mother permitted Father to carry over that week of
time with Child into the following year. Id.
Similarly, Mother testified that, since March 2020, there were at least
ten occasions where Father was unable to timely pick Child up following his
workday. Id. at 102-03. In those instances, Mother retrieved Child and had
him ready when Father arrived. Id. Mother also testified that, on occasion,
Child accompanies her to retrieve prescriptions from the hospital where Father
works, and she will “reach out to him” to see if he is available to see Child.
Id. at 125-26. Nothing in the record indicates that Mother has attempted to
isolate Father from Child. Father’s argument that Mother seeks to limit his
custodial time by seeking a more restrictive custody order is unpersuasive
because both parents have filed petitions that would limit the other’s time. As
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we discern no abuse of discretion by the trial court in determining that section
5328(a)(3) weighs in Mother’s favor, Father’s first issue merits no relief.
In his second issue, Father challenges the trial court’s ruling with respect
to section 5328(a)(4), which requires the court to consider the need for
stability and continuity in the child’s education, family life, and community life.
Father argues that this factor should favor him because the trial court
focused on events that occurred immediately before their marital separation
and did not address the evidence of Child’s current struggles which have
developed while Mother was the primary custodian. Father argues that Child’s
“conduct has deteriorated” and “Mother refuses to seek help other than play
therapy.” Id. at 23. In essence, Father contends that the trial court “focused
on Father’s past without analyzing [his] current conduct and [Child’s]
struggles.” Id. at 24. Father asserts that the court improperly weighed this
factor in favor of Mother “despite a custodial arrangement which has failed
[Child] and his best interests.” Id.
The trial court considered Father’s second issue and explained that
section 5328(a)(4) favored Mother because:
Mother has been consistently providing stability and
continuity for [Child]. Some of the things to which Mother
testified, such as Father leaving for indefinite periods of time
without communicating with her about where he was going or
when he was returning, suggest that he is somewhat less reliable
than Mother.
Trial Court Opinion, 4/11/22, at 3.
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Based on our review, we discern no abuse of discretion by the trial court
in determining that section 5328(a)(4) favored Mother. Mother testified that
she has a flexible schedule, and she has the ability to work from home two
days a week. See N.T., 4/8/22, at 97-98. Similarly, during the pandemic she
was able to work from home five days per week and provided Child with a
workspace to learn remotely. Id. 101-02. Father’s schedule is not nearly as
flexible. As explained above, Mother testified to at least ten instances where
Father could not timely retrieve Child following his workday. Id. at 45-46,
102-03. Additionally, Mother has encouraged play therapy, but also testified
that at the time of trial, Mother and Father were attempting to schedule a
meeting with another mental health expert for Child. Id. at 178-79.
Mother also lives in the same home that Child has known since his birth,
and the home is approximately one mile away from the school he attends. Id.
at 103-05. In addition, Mother’s witnesses all testified that Child enjoys his
time at Mother’s home, that Child has lots of friends in the neighborhood, and
that Child has a wonderful relationship with Mother. See N.T. (Morning
Session), 4/7/22, at 30-31, 45-46; N.T. (Afternoon Session), 4/7/22, at 5-6;
10.
Overall, the record reveals that Mother has provided a consistent and
stable environment for Child. Although Father argues that the trial court did
not consider Child’s ongoing behavioral concerns and academic challenges,
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nothing in the record indicates that Child’s issues are related to Mother having
primary physical custody. Therefore, as the record supports the trial court’s
determination, we conclude that Father’s second issue is without merit.3
In his third issue, Father challenges the trial court’s ruling with respect
to section 5328(a)(10), which required the court to consider which party is
more likely to attend to the daily physical, emotional, developmental,
educational, and special needs of the child.
Father argues that this factor should favor him because Mother refuses
to cooperate with him in making appointments and sharing information about
Child. Father states that he has scheduled doctor’s appointments for Child,
that Mother does not communicate with him regarding dates and times of
appointments, and Mother does not communicate with him regarding medical
and educational decisions for Child. Father claims that Mother did not
communicate with him regarding Child’s bedwetting and Child returning to in-
person schooling full-time for the 2020-2021 school year. Father contends
that Mother’s “continuous failure to cooperate, or even consult, with Father
regarding [Child’s] medical and educational decisions . . . when intertwined
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3 To the extent that Father challenges the trial court’s lack of analysis
regarding section 5328(a)(4), the trial court was not required to provide an
extensive explanation. See A.V., 87 A.3d at 822-23 (holding that “there is
no required amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that the custody
decision is based on those considerations”).
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with Mother’s attempts to limit Father’s time with [Child] . . . points to an
effort to limit Father’s parenting to [Child’s] detriment.” Father’s Brief at 26.
The trial court considered Father’s third issue and explained that section
5328(a)(10) favored Mother because:
Mother testified that she sets up all the doctor appointments and
Father participates to some degree but does not respond to her
communications about these things.
Trial Court Opinion, 4/11/22, at 3.
Our review of the record reveals that Mother has cooperated with Father
and informs Father of the needs and appointments for Child. See Mother’s
Exhibits 3-11, 13-17. Mother testified, “I understand [Father] wants to be
included and I want him to be there, but his schedule is such that it’s difficult
to arrange an appointment at a time where we can both be there.” N.T.,
4/8/22, at 120. Mother explained that she therefore schedules an
appointment to secure the date and time, and then informs Father of the
appointment. Id. According to Mother, if Father has any issues, “we’ll change
it. That’s fine.” Id. Mother provided an email exchange between her and
Father that clearly demonstrates that she communicated with Father
regarding Child returning to in-person schooling full-time for the 2020-2021
school year. See Mother’s Exhibit 5. The parties discussed the plan, and in
his final email on the topic Father states, “I thought I responded that I was in
agreement,” and confirmed the previously discussed arrangement for Child’s
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return to in-person schooling. Id. Mother also provided communications to
Father regarding Child’s bedwetting which directly contradicts Father’s
position. See Mother’s Exhibit 4. The record also shows that Mother
continuously provides for Child’s physical, emotional, developmental,
educational, and special needs, and regularly attempts to include Father.
Thus, as the record supports the trial court’s determination regarding section
5328(a)(10), Father’s final issue merits no relief.
In sum, Father’s arguments essentially ask this Court to override the
credibility determinations of the trial court, reassess the evidence to credit
Father’s position, and re-weigh the factors to arrive at a different outcome.
This we cannot do. It is axiomatic that the trial court is the arbiter of
credibility, and this Court cannot interfere with the trial court’s careful and
thorough consideration of the best interests of children with findings that are
supported by the record. See A.V., 87 A.3d at 820. As the testimonial and
documentary evidence support the trial court’s determinations regarding the
custody factors, we affirm its custody order.
Order affirmed.
Judge Stabile joins in this decision.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2022
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